General Question

Ponderer983's avatar

Can I base an employment decision on smoking?

Asked by Ponderer983 (6396 points ) May 3rd, 2010

I work in a small company and all the employees are within a small radius of one another. We were recently hiring, and something that my employer would ask is if the person smoked. He did not want to hire a smoker, as the smell is generally annoying and he has asthma. Does he have the right to not hire someone based on their smoking/non-smoking habits or does this fall under discrimination laws?

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26 Answers

Captain_Fantasy's avatar

To not hire someone on the basis of smoking cigarettes is discrimination.

Seaofclouds's avatar

I think some of it depends on where you are at. Some states have “at will employment” meaning you can be denied employment or fired for any reason and the employer does not have to give a reason.

Legally, I don’t know if it would be discrimination or not, but I’d definitely look into it before stating that as the reason for not hiring someone.

marinelife's avatar

Smoking is not protected behavior. An employer is free to hire a non-smoker.

Coloma's avatar

I smoke a few cigarettes on occasion, mostly when enjoying a cocktail..I have been rejected a lot of times by a potential dating partner…their loss, missed out on an AWESOME woman..all because of a wee bit of tobacco…I’d say that it is discrimination based on personal preference, which is fine…but…maybe foolish as well.

KatawaGrey's avatar

It doesn’t fall under discrimination laws, no, but in my humble opinion it seems a silly reason not to hire someone if that person was most qualified for the job. Does your employer refuse to hire non-smokers who also smell funny? Also, wouldn’t your employer be able to tell if someone smoked if he interviewed them?

Captain_Fantasy's avatar

The law doesn’t recognize smoking as a protected right?
That’s pretty dumb.

It’s not like they can smoke in the building but to dismiss a smoker on that alone? I can see that enabling potential abuse.

Might as well stop hiring jews because they’ll miss more days or work for religious observances right?

Any boss with a lick of business sense knows to hire the best person you can for that position. If they smoke, set up an ashcan outside.

Seaofclouds's avatar

At the hospitals I have worked at, they have rules about staff smoking right before work because of the smoke lingering on their body. For people with COPD and asthma, just that lingering smoke can cause an attack. So I can understand a owner of a small business with asthma not wanting to take that risk.

marinelife's avatar

@Captain_Fantasy It is not protected. Here are the Federal laws:

“What Are the Federal Laws Prohibiting Job Discrimination?

* Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;
* the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;
* the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;
* Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;
* Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government;
* Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee; and
* the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.”

gemiwing's avatar

You can also refuse to hire someone who likes the color blue- no law against it. It comes down to what the business wants and the culture at the business. It sounds like this business has a very tight and narrow culture- which is fine if everyone is happy with it.

ANef_is_Enuf's avatar

It’s perfectly legal.

And ridiculous, in my opinion.

CyanoticWasp's avatar

Look at it this way: EVERY decision to employ or not employ a person involves discrimination. Every single one. The problem is that some forms of discrimination are legal, and some are not.

“Abilty”, “Personality”, “Job History”, “Salary Requirements”, “Qualifications”, “Recommendations” ... these are all “unprotected” areas of discrimination. You’re perfectly free to hire a person (or not) on these bases and say so to the person’s face—and there is no recourse. Even “looks” (believe it or not) can be a basis for an employment decision (but it better not be: “because I like white better than black”, for example).

On the other hand, there are “protected” areas where employers may not legally discriminate (so long as it doesn’t impact the ability to do the job). Among these bases are sex (gender), age, sexual orientation, religion, ethnicity, marital status… and “medical handicap”.

This is where you could conceivably run into a problem. If a smoker makes a claim that he is “addicted” to tobacco (and it’s not a controlled substance, so it’s not like you can fire him for acting illegally), then he may have a defensible claim to “medical handicap” exclusion from otherwise legal discrimination. That is, if he’s smart enough to make that claim and then determined enough to hire an attorney and press a case—it could be difficult to fight, and I’m sure that some attorneys would be happy to take that case pro bono for the publicity if and when they win (because surely one will ‘win’ such a case one day).

If your group insurance has a non-smoking rate that everyone in your group qualifies for and adheres to, then that may be a potential avenue for discrimination based solely on smoking. (Some civil service positions actually have “no smoking” written into the contracts; if employees are found to be smoking they can be terminated for cause.)

Employment law is seldom as clear-cut as it might at times appear to be.

If the employer can make a plausible case for discrimination based on any of the “clear cut” areas, then he’d be better off doing it there.

syz's avatar

If I had the option, I would not hire a smoker.

I have 5 smokers now, 2 of which are chain smokers. They disappear constantly, smoke in areas where they have been directed not to (for their own safety), throw butts on the ground, and they stink. They work with animals, so that’s a pertinent complaint since it affects how the animals respond to them.

They are a management headache and I’ve been having to develop what would seem to be some pretty common sense guidelines since verbal warnings have not been sufficient.

The 3 with the less severe addiction have expressed a wish to quit, so I have offered support and incentives. None of them have managed to quit.

If I have two qualified applicants, I will hire the non-smoker.

missingbite's avatar

Some companies are forcing the employees to stop smoking so the insurance rates will be lower. Smoking is not protected.

alive's avatar

technically (and by law) you cannot base employment on smoking. though i have heard from a hiring friend of mine that some companies do in fact so this because they provide heath care packages to their employees, and a smoker is a high cost.

i think the best you could get away with is if you had 2 candidates who were 100% equal (same amount of edu, or other experience etc) choosing the non smoker.

BUT i really feel like you could just tell the new employee not to smoke near the grounds because the employer has asthma. which to me is totally reasonable.

lilikoi's avatar

I don’t know if it would be legal or not to “discriminate” based on smoking, but I will say this:

I once left an office for a few reasons, one of the major ones being that almost everyone in the office smoked. Yes, the law says you cannot smoke inside, but I had to work with these folks every day, and you can smell it on their clothes, their breath, and in their cars. Not to mention the fact that they’d take smoke breaks every hour or half-hour, while I was sitting at my cubical working. I’m not allergic to it or anything, but I hate the smell and am a health nut so I had to go.

Nullo's avatar

I would say that you could on the common-sense basis; smokers must have their breaks, which eat time, which hurts productivity. They’d better be worth it.

The legality is likely another issue.

KatawaGrey's avatar

@syz @Seaofclouds: Those are both entirely different and, I think, justified situations. Whether or not a person smokes can affect them in those jobs but in a situation where a person’s personal habits do not affect their work, then it is silly not to hire someone because of that. This employer claims that the smell of smoke, even on someone’s clothes, triggers his asthma. If that is truly the case, he should be able to smell whether they smoke or not when he’s interviewing them.

Also, I keep hearing about these places where smokers take extra breaks to go smoke. I have never worked at one of these places and my mother, a smoker of more than forty years, has never taken extra breaks at a job. What kinds of companies allow extra breaks?

Captain_Fantasy's avatar

So it’s smoking that’s responsible for the employee’s long breaks or is that more of a personal performance issue?

I like a beer after work but I don’t go disappearing for 4 hours during work to go hang out at a bar.

If it is a law to allow employers to deny employment by virtue of their being smokers then that law is unjust by my moral compass. Maybe we can start denying fat people work because some lunches disappear from the break room refrigerator.

Are myself and @KatawaGrey the only ones who see it this way?

Also I didn’t see anything in those law quotations establishing any precedent to deny smokers employment opportunities.

Can we get a lawyer in on this topic please? I’m not buying this one.

Ponderer983's avatar

Part off my issue is that they also smell after they smoke, even if they are not doing it in front of me. It also contributes to second hand smoke, so why should I hire someone that could lessen my years on this earth?

KatawaGrey's avatar

@Ponderer983: Anybody you hire will shorten your life span because employees cause stress and stress causes physical issues.

Lawyered!

Ponderer983's avatar

@KatawaGrey This is very true lol

ANef_is_Enuf's avatar

Of course I’m biased, but I’m not sure that smoking affects my work performance. I don’t take special breaks to smoke… I take whatever time is set aside for breaks. And I tend to be back early from breaks (probably because I’m more nervous that I’ll be late coming from outside, rather than someone who stays in for a break.) I’m also aware that cigarettes stink… and I don’t want to stink. So after I smoke I wash my hands, rinse my mouth, pop a mint or a piece of gum… and I carry a fabric softener sheet in my pocket to run over my clothes to keep them smelling clean. I am also conscious and considerate of non-smokers. I can understand why people dislike smoking… but judging all smokers as one in the same seems really unfair.

Just my 2 cents as a smoker.

KatawaGrey's avatar

@TheOnlyNeffie: Good for you! I think people see the inconsiderate smokers and then make blanket statements that all smokers are as awful. Clearly, though, you are a considerate smoker. :)

ANef_is_Enuf's avatar

@KatawaGrey you’re right, I’m sure… about a few bad apples, and thank you. I also work in close physical proximity with people in a medical setting, so the last thing I want is to be up in someone’s personal space smelling like an ashtray.

Coloma's avatar

@TheOnlyNeffie

Well said and I parrot your attitude. I never smoke in my house, only outside with a Corona or glass of wine. I can go without forever, especially while working, BUT…I have always been mega conscious of being the pariah when it comes to lighting up.

Not all smokers are smelly slobs!

I am hardcore on my oral hygeine…my pearly whites are very pearly! lol

mattbrowne's avatar

You shouldn’t.

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